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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Buchanan and Another v. Marr [1883] ScotLR 20_635 (7 June 1883)
URL: http://www.bailii.org/scot/cases/ScotCS/1883/20SLR0635.html
Cite as: [1883] ScotLR 20_635, [1883] SLR 20_635
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SCOTTISH_SLR_Court_of_Session
Page: 635↓
Court of Session Inner House Second Division.
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v.
Facts:
A feuar was prohibited by his feu-contract from erecting or occupying on his feu “any buildings for any other purpose than dwelling-houses and relative offices,” which buildings, it was further stipulated, should be self-contained, detached, or semi-detached villas,” and should not be less than a certain size, nor exceed one on each quarter of an acre. He erected on his feu a detached dwelling-house of two storeys and a basement, with a separate entrance to each storey. The upper storey was entered by an outside stair. There was an inside stair giving communication between the basement and the ground floor, and the ground floor and top flat, so that the whole house could be used for one family. In an action at the instance of the superior and a co-feuar for declarator that the building was contrary to the terms of the feu-contract, and to have the vassal ordained to remove it— held ( diss. Lord Rutherfurd Clark) that the building was not from its structure a contravention of the provisions of the feu-contract.
Page: 636↓
By disposition dated December 28, 1877, and duly recorded, James Marr disponed to James Davidson a plot or area of ground, part of the lands of Wellshot lying in the parish of Cambuslang. This piece of ground was part of a larger piece of ground feued out to Marr by Thomas Gray Buchanan of Scotstoun. Marr retained the remainder of the ground so feued to him. At the time of this action Michael Rowand Gray Buchanan of Wellshot and Rosebank, the successor of T. G. Buchanan above mentioned, was superior of both Marr and Davidson.
By the feu-contract (which was dated 16th and recorded 20th February 1875) between Buchanan and Marr, the feuar was prohibited from exercising or carrying on any one of a variety of trades or processes on the ground feued, and he was also forbidden “to erect on said plot of ground or any part thereof, or occupy thereon, any buildings for any other purposes than dwelling-houses and relative offices, which dwelling-houses shall be self-contained, detached, or semi-detached villas, shall face toward” a certain and specified road, “and shall not be of smaller size than three rooms and kitchen, and shall not exceed in number one for each separate quarter of an acre.”
The present action was raised against Marr at the instance of Buchanan as superior of the lands, and of Davidson as co-feuar with Marr, for declarator that the defender was not entitled to erect on his feu any buildings to be used for any purpose than dwelling-houses and relative offices, and not entitled to erect any dwelling-house other than self-contained, detached, or semi-detached villas, not of smaller size than three rooms and kitchen, and not to exceed in number one for each quarter of an acre, and that a building which the defender was erecting, and which he afterwards completed, was “not a self-contained, detached, or semi-detached villa facing towards the said road, but, on the contrary, that the said building or buildings was intended for and about to be completed as two separate dwelling-houses in flats, and that the portion of ground upon which the same is built is not one quarter of an acre for each separate dwelling—house, and further that the erection of the said building or buildings is a contravention of the said feu-contract, and to the prejudice of the pursuers.” The pursuers also concluded for interdict against the defender proceeding with and completing the building complained of, and that he should be decerned to take down and remove it and the materials.
The building complained of was described by the Lord Ordinary in his note as being when completed “a detached dwelling-house of two storeys, with a separate entrance to each, and a basement storey, having also, as is not unusual, a separate door of entrance. There is a communication by means of an internal stair between the basement and the ground floor, and between the ground floor and the upper floor, so that the whole building may be occupied as a single dwelling-house by one family. But the communication between the two upper floors may be readily cut off, and if that was done the internal arrangements are such that each might be conveniently occupied as a separate house.”
From the proof it appeared that after remonstrances had been made by the agents of the pursuers, and while a correspondence was in progress in which this action was threatened, the defender had made the communication, by means of an internal stair between the basement and ground floor, and between the ground floor and the upper floor, which was mentioned by the Lord Ordinary.
The pursuers pleaded—The building complained of being disconform to the conditions of the feu-contract, the defender is not entitled to erect the same.
The defender, besides averring and founding on such alleged acquiescence of the superior as would bar the action at his instance, pleaded—“(1) Neither of the pursuers separately has sufficient title and interest to sue the present action, or to object to the building complained of, and the pursuers conjointly have no such title and interest. (2) The pursuers' statements are irrelevant. (3) The building complained of not being in contravention of the defender's rights under the said feu-contract, the defender should be assoilzied.”
The Lord Ordinary ( Kinnear) assoilzied the defender from the conclusions of the libel.
“ Opinion.—[After detailing the prohibitions in the feu-contract, and the conclusions of the action—The complaint therefore is, that the erection of the building in question, considered structurally, and apart from any use which may be made of it, is a contravention of the feu-contract; and the only remedy asked is a decree for taking down and removing the building, and the whole materials of which it is formed, from the ground.
[His Lordship then described the nature of the building complained of as quoted above.]—“The erection of such a house does not appear to me to be in itself a contravention of the feu—contract. It is a detached villa or dwelling—house. The portion of ground upon which it stands is more than a quarter of an acre in extent; and it is established by the pursuers' evidence that the existence of a separate door of access to the upper storey does not in itself prevent its being considered a self-contained house. For the superior's architect who was examined as a witness for the pursuers depones in his examination-in-chief — I would describe the house as it at present stands as a self-contained house with a stair inside,’ although he thinks ‘the outside stair an excrescence which should not be there at all.’
But it is said that the two floors were from the first, and are still intended to be, occupied as separate dwelling-houses, and that the internal communication, which is shown to have been an afterthought, is a mere device for evading the restrictions of the feu-contract. There can be no doubt that as the house was originally constructed no such communication was contemplated; and the defender admits that he now intends to use it in the same way as certain other houses on the estate, ‘the upper floor being let as a separate house complete in itself.' But these considerations are not, in my opinion, sufficient to support the action. If the defender's house is in its structure of such a character as to satisfy the conditions of the feu-contract, I think it very doubtful whether the contract contains any effectual restriction against its being occupied by several families, or otherwise than as self-contained houses. The feuars are prohibited from
Page: 637↓
It is unnecessary to consider the question which was argued, whether the pursuer Mr Davidson, as a co-feuar with the defender, has a title to sue, because the superior is also a pursuer, and his title to sue upon his own contract is beyond question. It was argued that the superior has no title to prevail, inasmuch as he has no interest to enforce the restriction as to building. But in the view I have taken of the case the question of his interest does not arise.”
The pursuers reclaimed, and argued that the restriction against erecting a building of other than a certain class had been contravened; a restriction on the use of a building after it is completed might be enforced— Ewing v. Campbells, November 23, 1877, 5 R. 230; Ewing, &c. v. Hastie, January 12, 1878, 5 R. 439.
The defender in reply relied on the case of Moir's Trustees v. M'Ewan, July 15, 1881, 7 R. 1141.
At advising—
Now, it appears that whereas under the feu—contract it is provided that only villas, self-contained, detached, or semi-detached, shall be allowed to be erected, it is said that this building has a front door below and a back door above, with an outer stair leading up to it, and that the upper floor is so constructed that it may be conveniently used by one family, the lower floor being also capable of similar use by another family, and that in point of fact the defender intends so to use the building.
I have already observed that the action is not directed against the use of the building, but against the building as a material structure attempted to be raised in violation of the conditions of the feu-contract; the matters objected to being that there is accommodation for two households—two pantries, closets, and kitchens, etc., instead of one. Now, I cannot listen to such objections to structure here made by the superior or anyone else. Such objections are in my opinion ridiculous. Whether the superior could complain of the use made of the house by two families instead of one (and there might be a single lady living on each floor) as a use inconsistent with its being a “self-contained” house, I with the Lord Ordinary decline to inquire, because this is an application for the removal of a building, and is not directed against the use made of it. So far as I can see, such an application would not be any more successful than the present, but certainly the question is not raised here. On the whole matter I am prepared to affirm the judgment as it stands, and on the grounds stated.
Now, that contract makes this provision amongst many others—The feuar is not to occupy the plot with any building except a dwelling-house, so that nothing is to stand on the plot except a dwelling-house. Then comes a provision which I take it is intended to secure the character of the dwelling-house to be erected by the vassal, and which is thus described, “which dwelling-houses shall be self-contained, detached, or semi-detached villas.” There is a further provision in the feu—contract connected with the general feuing plan of the ground, that each quarter acre shall only have one house, and we are here dealing with the quarter of an acre in the defender's possession as vassal; so that the result of the clauses as to him is that he is to have no building on it except a dwelling-house, and only one dwelling-house, and that to be a self-contained villa. These are
Page: 638↓
Now, it may not be altogether easy to define the word “self-contained,” because we know that definitions are both difficult to form and are easily criticised when formed; but I must say the question which I should put to myself would be, whether, assuming the house to be constructed as the defender proposed at first, that house would have been one or two houses? In my opinion, beyond doubt two houses and not one would have been in the ordinary sense erected according to the meaning of the contract. He intended one tenement, but one dwelling—house with a separate entrance, and also another on the upper storey with its separate entrance, and these two were separated as usual by a horizontal line of separation or division.
Now, I cannot look at it except as a building consisting of two dwelling-houses, and therefore as a breach of the conditions of the feu-contract. I decline to give a definition of a “self-contained” house, but when I find a house to be occupied separately below and separately occupied above, I cannot hold it a “self-contained” house, but necessarily two houses. Now, it is said that the defender has finished off the house in a manner different from what he originally contemplated, in that he made a communication by which access can be got from the lower to the upper storey. Now, that is but a transparent device to avoid the conditions of the feu-contract, and I have little doubt if your Lordships assoilzie the defender that the internal communication will disappear and the houses will then become entirely separate houses. I think the pursuer is entitled to challenge such a violation of the feu—contract. I am not dealing with the use, but entirely with the question what are the kind of buildings the feuar is allowed to erect on the feu in terms of his feu-contract, and I am of opinion that he has erected one which is not fitted to the conditions of that contract.
The conditions of the feu-contract were that the feuar should build on the ground one dwelling—house, and that self-contained and detached or semi-detached. I think that one dwelling-house means one tenement intended for a dwelling—house, and the word “self contained” is no more incapable of definition than “detached” or “semidetached.”
I take it a “self-contained” house is, popularly speaking, a house adapted for the residence of a single family, and not necessarily a house which can be turned to no other use. The question of use or occupation is apart from that, but here the question is, whether the structure as it existed prior to this action was a structure incapable of being used by a single family? I cannot see why, and we heard nothing from the bar to lead us to such a conclusion. The outer stair may be used for the occupation of the family above, and therefore that part of the case resolves itself into one of occupation and not of structure, and as to the double set of rooms, they may be useful, and the proprietor may shut off as he chooses one-half of the family from the rest. Now, I must say the conclusions of this action are startlingly extreme, for it is not demanded of the feuar to take away the outer stair, &c., but to remove the whole structure from the ground, and there are no other petitory conclusions at all.
On the whole matter I am of opinion that there is nothing here inconsistent with the feu-charter. I am therefore for adhering.
The Court adhered.
Counsel for Reclaimer— Mackintosh— Dickson. Agents— Smith & Mason, S.S.C.
Counsel for Respondents— J. P. B. Robertson— W. C. Smith. Agent— W. S. Harris, L.A.